United States v. Reddick

ORDER GRANTING IN PART AND DENYING IN PART MOTION IN
LIMINE RE EXPERT TESTIMONY

Jeffrey Alker Meyer United States District Judge

Defendant
has moved in limine to preclude in whole or in part
the anticipated expert testimony of an experienced law
enforcement agent about general manufacturing and marketing
practices relating to narcotics trafficking. I will mostly
deny defendant's motion except to the extent that the
agent would testify that firearms are among the tools of
trade of narcotics traffickers. Although I do not doubt the
proposition that drug dealers commonly use guns, I am not
convinced that this is a matter beyond the ken of an average
juror for which expert testimony is warranted.

Background

The
Government has charged defendant with multiple drug
trafficking crimes as well as firearms counts arising from
the seizure of a gun. I expect the Government's trial
evidence will show that law enforcement agents conducted a
search of the house where defendant and others lived and that
they seized cocaine, heroin, and various types of drug
paraphernalia from bedroom areas used by defendant. Although
the agents did not find a gun in the house, they saw and
photographed a Ruger gun lock in an upstairs bedroom closet,
and they also found a military fragmentation protective vest.

In
defendant's bedroom, agents found the key to a Toyota
RAV4 that was parked inside the garage at the house. The
agents soon obtained a search warrant for the car where they
found a Ruger 9 mm gun, two kinds of ammunition, and about
one ounce of fentanyl. The car was not registered to
defendant, and I expect that an important issue at trial will
be whether defendant had access to the car and used it to
store the drugs, ammunition, and gun that were found inside.

The
Government proposes to call as a witness at trial Special
Agent Michael Zuk, a highly experienced FBI agent, to offer
expert opinion testimony about the following subjects:
“the methodology for the distribution of cocaine,
cocaine base, heroin, and fentanyl; the typical wholesale and
street-level retail quantities and prices for these
controlled substances; the manner in which cocaine is
converted into cocaine base; the manner in which heroin is
broken down and packaged for distribution; common practices
in the distribution of narcotics; and the utility of certain
items (i.e., “tools of the trade”) to further
drug trafficking operations.” Doc. #59 at 11. The
Government proposes to have Agent Zuk testify “about
the general practices of drug distribution, including
packaging, quality, pricing, and terminology, as well as the
role firearms typically play in a drug trafficking
operation.” Id. at 11-12.

Defendant
has moved in limine to exclude or limit the
testimony of Special Agent Zuk. Doc. #60. I heard argument
from the parties on defendant's motion at the pre-trial
conference and now issue this ruling.

Discussion

The
Federal Rules of Evidence provide that expert testimony is
admissible if “scientific, technical, or other
specialized knowledge will assist the trier of fact to
understand the evidence or determine a fact in issue.”
Fed.R.Evid. 702. “Testimony is properly characterized
as ‘expert' only if it concerns matters that the
average juror is not capable of understanding on his or her
own.” United States v. Mejia, 545 F.3d 179,
194 (2d Cir. 2008).

I
conclude that most of Agent Zuk's proposed testimony is
the proper subject of expert testimony, especially because
the Government at trial will be required to prove not merely
defendant's possession of narcotics but also his intent
to distribute the narcotics that he allegedly possessed.
Three different kinds of narcotics were seized in this case,
and I do not think that the average juror would likely be
familiar with the particulars of and differences between
cocaine, heroin, and fentanyl. This is especially true for
fentanyl, which has most recently emerged as a very common
narcotic for distribution. Nor do I believe that the average
juror would likely be familiar with how cocaine, heroin, and
fentanyl are usually packaged for sale and with pricing
practices for these narcotics. Accordingly, I will allow
Agent Zuk to testify about the general nature of each of
these narcotics, where they come from, how they are commonly
manufactured or processed, how they are commonly packaged for
sale, and how they are commonly priced for sale.

I will
also allow Agent Zuk to testify about other aspects of
narcotics trafficking that I think would be beyond the
knowledge of the average juror. First, I will allow him to
testify about the general practice of narcotics sellers and
buyers to use coded language and the meaning of common drug
slang terms. See, e.g., Mejia, 545 F.3d at
189 (noting approval of expert testimony in this area).

Second,
with one exception for firearms discussed below, I will also
allow Agent Zuk to testify about common “tools of the
trade” for narcotics trafficking, because I do not
believe that the average juror would likely know the use that
certain otherwise innocuous items may have for a person who
is involved in narcotics distribution. Although the
Government has represented that it will not show Agent Zuk
any of the items recovered during the execution of search
warrants in this case, the Government may ask him to identify
common tools of the trade that are used by narcotics
traffickers and may also ask Agent Zuk in generic terms about
the potential use in narcotics trafficking operations of
items like the kind that were recovered from the searches in
this case (e.g., baggies/wrappers, spoons, baking
soda, a blender, a microwave, a vacuum sealer, a cutting
agent, money bands, a money counter, stamps, and face masks).
All of this testimony will be helpful to the jury's
determination of whether defendant was engaged in drug
trafficking at all and on what scale (which may be relevant
to the jury's determination whether and for what purpose
he may have possessed a gun).

A
closer question in my mind is whether Agent Zuk should be
permitted to testify that firearms are a tool of the trade of
narcotics traffickers. Of course, I have no doubt that
firearms are tools of the drug trade. See, e.g.,
United States v. Page, 657 F.3d 126, 130 (2d Cir.
2011) (noting “innumerable precedents” to this
effect). What is less clear is whether this linkage is
something for which an expert is needed-whether it is beyond
the ken or knowledge of the average juror. On balance, I
don't think average jurors need an FBI or DEA agent to
tell them that drug dealers often use or possess firearms to
protect themselves and their drugs and drug profits. I
can't see the need for an expert on this issue any more
than I would see the need for an expert in a bank robbery
case to say that bank robbers like to wear masks or in a
terrorism case to say that terrorists like to blow up bombs.
The linkage is well within the everyday knowledge of an
average juror. See, e.g., United States v.
Castillo, 924 F.2d 1227, 1232-33 & n.1 (2d Cir.
1991) (district court erred when admitting expert testimony
on certain drug dealer practices not beyond knowledge of
average juror and “voic[ing] similar skepticism
regarding the need for an expert witness to explain the most
elementary concepts of certain well-publicized criminal
schemes”); United States v. Stanley, 2016 WL
7104825, at *4 (D. Conn. 2016) (“the jury does not need
an expert's opinion about the obvious proposition that
drug dealers use violence and firearms to protect their drug
trafficking activity.”).[1]

For an
expert to come in to state the obvious about guns and drug
dealing going together not only exceeds the permissible
limits of expert testimony but also comes with some unfair
risk that the jury will conclude largely because of the
expert's imprimatur that the gun at issue here must have
had something to do with drug dealing. It is one thing for an
expert to testify based on specialized knowledge about
narcotics ...

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